Worker

Employer

Anonymised Parties

A University Professor

A University

Representatives

Shonagh Byrne, SIPTU

Niamh Daly,  IBEC

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00049250-001

21/03/2022

The employee has worked in the university since 2011 and is a professor in the School of Information and Communication Studies.  In November 2022, she was appointed to the grade of full professor, which is a senior professor role.  This dispute concerns the employee’s application for promotion to full professor in 2020. 

In March 2019, when the employee was denied promotion to the grade of full professor, the faculty promotions committee (FPC) urged her to augment her research record, to graduate PhD students and to publish more peer reviewed articles.  On May 8th 2020, having graduated two PhD students and published extensively, she submitted another application.  In her submission for the hearing of this matter, SIPTU included a copy of the employee’s application document, which runs to 18 pages setting out her research, publications, supervision, engagement with PhD students, teaching and learning experience and contribution to leadership. 

Part of the assessment process for promotion involves the selection of three external reviewers from a list presented by an applicant.  The employee is female and a person of colour, and the three reviewers selected by the employer from her list of potential reviewers were white men.  On April 26th 2021, the FPC concluded that the employee’s application “did not yet provide sufficient evidence of an aggregate profile of sustained exceptional achievement across the three categories of Research, Scholarship and Innovation / Teaching and Learning / Leadership and Contribution that was commensurate with the grade of Full Professor.”  Concluding his letter informing her that she had not been promoted, the chairperson of the FPC said, “The Committee would welcome a future application from you when the body of supporting evidence contains further, and firmer indicators of exceptional achievement in this area.”

On July 8th 2021, the employee submitted an appeal against the decision of the FPC not to promote her.  Setting out two grounds for her appeal, she claimed that the FPC had not properly adhered to the university’s anti-discrimination policy and procedures and that the application of the criteria for the granting of promotions was unfair.   On November 25th, the faculty promotions appeals committee (FPAC) wrote to the employee and informed her of its decision:

“The FPAC is satisfied that the Faculty Promotions Committee followed due process and that no procedural defects occurred in the consideration of your application and the decision made by the Faculty Promotions Committee.  Accordingly, the FPAC’s decision is that your appeal is not upheld.”

The employee claims that the committee did not properly analyse her claim that the application of the criteria for the granting of promotions was unfair.  When a request for data under a Freedom of Information request provided no further clarification, on March 21st 2022, she submitted this grievance to the WRC.

The Employee’s Position that the Selection Process was Unfair

It is the employee’s position that the fact that the burden of identifying external assessors fell on her was unfair.  She argued that an un unreasonable burden is faced by an applicant for promotion and their head of school to provide a list of reviewers with the following characteristics:

1.       Their university is ranked the same as or better than the employer university;

2.       The list is gender-balanced;

3.       The reviewers are senior to the applicant;

4.       The reviewers are geographically balanced;

5.       There is no conflict of interest between the reviewers and the applicant;

6.       They are in the same area of research as the applicant;

7.       They are active researchers;

8.       They have agreed in advance to provide a reference when asked.

The original FPC rejected some of the employee’s female reviewers as being inactive at research but they did not expand on why they found this to be the case.  The employee submitted that the FPC should be required to inform candidates why they select the reviewers they select, because research has demonstrated that men are likely to be more negative reviewers of women and people of colour.  It is the employee’s position that, simply because the review process is a long-standing one, doesn’t mean that it is fair or transparent.

In summary, it is the employee’s case that the decision not to promote her in 2020 was flawed and that appeal process was unfair and limited in its consideration of her grounds of appeal.  In October 2022, the employee was promoted to the position of a full professor.  She now seeks a recommendation that the employer will adhere to its principles on gender balance in promotional processes and that the faculty promotional appeals committee should address all the grounds submitted by a candidate in their appeal of a decision to deny them promotion.

There is no dispute between the employer and the employee regarding the facts and chronology that led to the FPAC rejecting the employee’s appeal against the decision not to promote her in April 2021.  In her submission at the hearing of this dispute, Ms Daly referred to the feedback meeting that the complainant attended on June 15th 2021.  The notes of the meeting show that the employee said that “she had no clear sense of what she should do to meet the expectations of the Committee regarding promotion to Full Professor” and that “her position as a woman, a person of colour, outsider and pathbreaker for a newly emerging, transdisciplinary field had made the endeavour especially challenging.”

The Committee disagreed with this assertion and stated that the employee should “concentrate on primary, original research and scholarship, as opposed to professional writings and assume a greater leadership role in these publications.”

In response to the employee’s query about why the assessor reports were from white, American men, the promotions and grading co-ordinator replied:

“As you know, the FPC receive a long list of external assessor nomination from both the candidate and the commentator which the FPC then place in ranked order.  Promotions and Grading (P&G) then contact the required number of external assessors from the ranked list.  When contacting external assessors, it is sometimes necessary to contact additional external assessors.  This can be for reasons such as an external assessor not replying to the request from P&G to provide a report to them or due to them responding to say they are no longer in a position to provide a report.  In such as situation, P&G would then proceed to the next external assess on the ranked list.

In the case of your external assessors, I can confirm that only the top three external assessors ranked by the FPC were contacted and all three provided reports so we did not need to proceed to contact others on the ranked list.”

In her submission, Ms Daly provided an outline of the faculty promotions policy which provides that applications are assessed against the university’s development framework.  Candidates for promotion assessed under three criteria:

§  Research, scholarship and innovation;

§  Teaching and learning;

§  Leadership and the contribution.

A candidate applying for promotion is required to nominate three external assessors for consideration by the FPC and the head of school is required to nominate five external assessors.  The candidate and the head of school is required to ensure that the list includes male and female assessors and that they have a geographical spread.  The FPC agrees a ranked list of external assessors and they also reserve the right to exclude an assessor who has been selected by the candidate or by their head of school.  An assessor may not be selected if,

§  They are not at the level of seniority required;

§  There is little or no geographical spread;

§  There is insufficient representation of men or women;

§  There is an actual or perceived conflict of interest;

§  They do not meet the list of other requirements (referred to in the Summary of the Employee’s Position on page 3 above).

The FPC aims to receive reports from different locations and genders but the ability to achieve this balance varies depending on the availability of assessors and how they are ranked.  The HR department contacts the selected external assessors in order of ranking, until the required number of reports is received.  To determine if the candidate has provided sufficient evidence for promotion, the FPC fully re-assesses the evidence provided by each candidate, including the development workspace and the external assessors reports against the development framework for the faculty. 

In the case of the employee’s application in 2020 for promotion to a full professor, the assessors who were ranked by the FPC and who were contacted all provided a report.  Ms Daly said that, for this reason, there was no need for the FPC to contact any other assessors because “the top ranked 3 engaged with the request to provide a report.”

In July 2021, the employee submitted an appeal to the FPAC on the following grounds:

1.              Failure to follow university policy and procedures for the consideration of an application for promotion in the following ways:

§  The complainant claimed that the selection of three white male assessors was in violation of the Equality, Diversity and Inclusion Policy which requires that at least 40% of key decision-makers are women.

§  She claims that, when deciding that she should not be promoted, the committee did not fully consider the assessments of the evaluators.

§  She claimed that the feedback from the FPC materially misinterpreted her research record and pathway to impact.

2.               The employee claims that criteria for the granting of promotions was applied unfairly or unreasonably.

The FPC responded to the employee’s appeal re-asserting that the top-ranked assessors who were among those who were nominated by the employee were asked to provide assessments.  The FPC’s decisions are informed by, but not determined by the commentaries of the external assessors.  Ms Daly concluded this point by asserting that a feedback letter from the FPC “is not an exact documentation of the basis on which it arrived at a decision, nor can a feedback meeting provide a complete account of the factors informing a decision.”

Ms Daly said that the FPAC appeal process has been agreed between the university and SIPTU and IFUT since 2017.  The appeals committee hears appeals on alleged defects in the application of the procedures for promotion, but it is not a review of the application.  When they considered the employee’s appeal, the FPAC were satisfied that the FPC followed due process with no procedural defects occurring and her appeal was not upheld.

Conclusion of the Employer’s Case

Ms Daly concluded the employer’s submission by referring to the FPC policy which is well-established in the university.  The committee members, all at the level of full professor, are experienced in assessing applications and there is no evidence to suggest that the employee’s application was treated unfairly.  The committee has a balance of men and women.  The FPAC focussed their review on the procedures followed by the FPC and they found no procedural defects.

Due to the difficulty that can occur with eliciting external assessor reports, the FPC needs to have an approved list available so that they can move to the next ranked nominated person if one nominee does not engage with the process.  The list can also be reduced by exclusions.  The full assessment cannot occur until the assessor reports are received and it is not possible to ensure that the reports are provided by a balance of men and women.  Ms Daly asserted that the fairest and most efficient process is to have a gender-balanced list of assessors that are available if the FPC needs to work their way through the ranked list.

The assessor reports are not the deciding information that the FPC considers.  Ms Daly said that “it is the totality of the application in aggregate against the Development Framework for the Faculty that will determine the outcome.  In the case of this employee, the assessor reports were supportive of her application, but, for the reasons outlined in the feedback report, she was not considered for promotion in 2020.

Ms Daly said that the FPC and the FPAC operates within the confines of the policy, and, although she was dissatisfied with the outcome of her application in 2020, the employee was promoted to the grade of full processor in November 2022.  For these reasons, Ms Daly asked me not to recommend in favour of the employee’s case.

I have considered this employee’s argument that the selection of three white male assessors resulted in a biased outcome from her application for promotion to the grade of full professor in May 2020.  I find it difficult to accept that, while the panel of nominated assessors must comprise a balance of men and women, it is not a requirement that there is a gender balance among the assessors selected by the FPC to provide assessments in a specific promotion competition.  At the hearing, the promotions and grading manager said that “it just happened” that the selected assessors were men and that, where it is possible, there will be a balance of men and women.  While I appreciate that the achievement of a gender balance among the selected assessors may be a challenge, it seems to me that, in accordance with the university’s Policy on Equality, Diversity and Inclusion, it is a challenge that must be met.  I agree with the employee’s case that the FPC should explain the reason that the three nominated assessors are selected, as this would require the committee to examine the rationale for excluding those that are not selected.

At the hearing, the HR manager argued that no bias can have occurred because the three selected assessors all recommended that the employee was promoted to the grade of full professor.  I accept that this may indicate that they were not negatively disposed towards her application for promotion; however, we have no information regarding the degree to which they actually recommended that she was promoted or how much their written assessments influenced the promotions committee.

In addition to the fact that her three assessors were white men, the employee argued that the FPC did not respond to all the grounds of her appeal, and that they focussed only on her concern about the fact that the selected assessors were men.  The employee alleged that the way her application of 2020 was considered was unfair and not consistent with natural justice.  At the hearing, the HR manager submitted that fairness is difficult to address.  I accept that, as a concept, one person’s sense of fairness may not be the same as another’s; however, in her very detailed appeal document, the employee was clear about the issues that she considered were unfair.  She said that, to her detriment, the FPC’s feedback materially misinterpreted her research record and her pathway to impact.  As a clearly stated ground of appeal, it is my view that this was deserving of a clearly stated response.

I have considered the employee’s arguments regarding the unfairness of the response of the FPC and the FPAC in 2021, when her promotion to the grade of full professor was unsuccessful.  I recommend that, in its selection of a panel of assessors, that the FPC seeks to ensure that there is a balance of men and women, and if this is not possible, that an explanation of the reasons it is not possible are provided to the applicant.  I recommend also, that, in its response to an applicant who is being declined, that the FPC provides a complete account of the reasons for their decision.  Finally, I recommend that, in its response to an appeal of a decision not to promote an employee, the FPAC considers all the grounds submitted by a candidate.

Promotion, gender bias